House Bill 1326

AN ACT TO PROVIDE FOR THE PAYMENT OF COSTS AND EXPENSES
INCURRED BY A PREVAILING DEFENDANT IN A CIVIL ACTION; TO AUTHORIZE THE FILING
OF A SUIT TO RECOVER SUCH COSTS AND EXPENSES; TO AMEND SECTION 11-53-31,
MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; TO AMEND
SECTIONS 11-55-5 AND 11-55-7, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A PARTY
AND HIS ATTORNEY SHALL BE JOINTLY LIABLE FOR COSTS AND DAMAGES IN A FRIVOLOUS
SUIT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE
STATE OF MISSISSIPPI:

SECTION
1. In civil actions which are
filed by an individual or group of individuals against another individual or
group of individuals, the individual defendant or defendants named may file as
part of the response to the plaintiff's pleading a statement that such
defendant will provide an itemized list of expenses which may include time
spent in preparation of defense and other legitimate expenses to the court for
approval of payment from the plaintiff and the plaintiff's attorney to the
defendant in the event that the decision is in favor of the defendant. If the plaintiff's attorney has a payment
arrangement of a set fee or an hourly fee as his remuneration from the
plaintiff, then the attorney will have no obligation to the defendant. If the plaintiff's attorney has a
contingency fee arrangement with the plaintiff, then the plaintiff's attorney
shall not be liable for more than the maximum contingency percentage of the
award that the plaintiff's attorney would have received if the plaintiff had
been the successful party in the lawsuit.
If the plaintiff and the plaintiff's attorney do not pay the submitted
list of expenses within ninety (90) days to the defendant, then the defendant may
file suit in the same court for payment of the list of expenses plus reasonable
expenses for that suit. All laws of
joint and several liability shall apply to any suit filed under the provisions
of this section.

11-53-31.
Except as otherwise provided in Section 1 of this act, all costs
accrued at the instance of the successful defendant in a suit, which cannot be
collected out of the other party, may be collected from such defendant; and
after return of "no property" on execution against a plaintiff or
complainant against whom costs were adjudged, execution may be issued against
the successful defendant for all costs accrued at his instance and not
paid or collected from the other party.
A successful plaintiff or complainant shall be liable for all the costs
of the case accrued at his instance which cannot be collected from the
defendants; and after return of "no property" on execution against
the defendant against whom costs were adjudged, execution may be issued against
the successful plaintiff or complainant for all the costs of the case accrued
at his instance not paid or collected from the defendant. An unsuccessful plaintiff or complainant
shall be liable for all the costs of the case.

11-55-5.
(1) Except as otherwise provided
in this chapter, in any civil action commenced or appealed in any court of
record in this state, the court shall award, as part of its judgment and in
addition to any other costs otherwise assessed, reasonable attorney's fees,
and costs and the amount of damages sought in the complaint against any
party and attorney if the court, upon the motion of any party or on its
own motion, finds that an attorney or party brought an action, or asserted any
claim or defense, that is without substantial justification, or that the
action, or any claim or defense asserted, was interposed for delay or
harassment, or if it finds that an attorney or party unnecessarily expanded the
proceedings by other improper conduct including, but not limited to, abuse of
discovery procedures available under the Mississippi Rules of Civil
Procedure. Such award shall be
assessed jointly upon such party and the attorney representing such party.

(2)
No attorney's fees or costs shall be assessed if a voluntary dismissal
is filed as to any action, claim or defense within a reasonable time after the
attorney or party filing the action, claim or defense knows or reasonably
should have known that it would not prevail on the action, claim or defense.

(3)
When a court determines reasonable attorney's fees or costs should be
assessed, it shall assess the payment against the offending attorneys and
parties, or both, * * *
allocate the payment among them, and the offending attorney and party shall
be jointly liable for such fees or costs.

(4)
No party, except an attorney licensed to practice law in this state, who
is appearing without an attorney shall be assessed attorney's fees unless the
court finds that the party clearly knew or reasonably should have known that
such party's action, claim or defense or any part of it was without substantial
justification.

11-55-7.
In determining the amount of an award of costs, damages or
attorney's fees, the court shall exercise its sound discretion. When granting an award of costs and
attorney's fees, the court shall specifically set forth the reasons for such
award and shall consider the following factors, among others, in determining
whether to assess attorney's fees and costs and the amount to be assessed:

(a)
The extent to which any effort was made to determine the validity of any
action, claim or defense before it was asserted, and the time remaining within
which the claim or defense could be filed;

(b)
The extent of any effort made after the commencement of an action to
reduce the number of claims being asserted or to dismiss claims that have been
found not to be valid;

(c)
The availability of facts to assist in determining the validity of an
action, claim or defense;

(d)
Whether or not the action was prosecuted or defended, in whole or in
part, in bad faith or for improper purpose;

(e)
Whether or not issues of fact, determinative of the validity of a
party's claim or defense, were reasonably in conflict;

(f)
The extent to which the party prevailed with respect to the amount of
and number of claims or defenses in controversy;

(g)
The extent to which any action, claim or defense was asserted by an
attorney or party in a good faith attempt to establish a new theory of law in
the state, which purpose was made known to the court at the time of filing;

(h)
The amount or conditions of any offer of judgment or settlement in
relation to the amount or conditions of the ultimate relief granted by the
court;

(i)
The extent to which a reasonable effort was made to determine prior to
the time of filing of an action or claim that all parties sued or joined were
proper parties owing a legally defined duty to any party or parties asserting
the claim or action;

(j)
The extent of any effort made after the commencement of an action to
reduce the number of parties in the action; and

(k)
The period of time available to the attorney for the party asserting any
defense before such defense was interposed.

SECTION
5. This act shall take effect and
be in force from and after July 1, 2004, and shall apply to all causes of
action filed on or after that date.